Third Circuit disposition — 051986np-pdf

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-1986
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UNITED STATES OF AMERICA
vs.
WILLIAM LAVELLE PENNIX,
Appellant.
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 04-cr-00017-1)
District Judge: The Honorable Thomas M. Hardiman
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Submitted Under Third Circuit LAR 34.1(a)
October 4, 2006
BEFORE: McKEE, AMBRO, and NYGAARD, Circuit Judges.
(Filed: December 18, 2006)
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Appellant William Pennix drove the get-away car for several bank robberies in the
Pittsburgh, Pennsylvania area. He pleaded guilty and was sentenced to a term of 97
months imprisonment, to be followed by a three year term of supervised release.
On appeal, Pennix challenges the District Court’s sentence of 97 months imprisonment
while his co-defendant received an 87-month term of incarceration. Further, Pennix
maintains that the District Court erred when it actually enhanced his advisory Guideline
range based upon his reckless endangerment to the public, because he fled the crime
scene. We will affirm.
We asked counsel for supplemental briefing addressing whether the issues raised
in Pennix’s appellate brief were properly preserved. The proper interpretation of a federal
Sentencing Guidelines provision is a legal question subject to plenary review. See, e.g.,
United States v. Jones, 332 F.3d 688, 690-91 (3d Cir.2003). However, if a defendant fails
to object to the district judge's interpretation, the issue is not properly preserved and is
subject only to plain error review. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct.
1770, 123 L.Ed.2d 508 (1993); United States v. Davis, 407 F.3d 162, 164 (3d Cir.2005).
Because the record is devoid of any attempt by counsel to challenge the discrepancy
between Pennix’s sentence and that of his co-defendant, this sentencing issue was not
properly preserved and we review only for plain error. United States v. Moore, 375 F.3d
259, 262 (3d Cir.2004) Here, our review of the record conclusively establishes that the

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District Court clearly considered the applicable Guidelines range; the nature,
circumstances and seriousness of Pennix's offense; Pennix's history and characteristics;
the need for specific and general deterrence; and the need to impose a sentence promoting
respect for the law and providing just punishment. See § 3553(a). Moreover, Pennix’s
counsel did challenge the reckless endangerment enhancement, and the District Court
agreed with him, expressly stating in the record that it would not apply the enhancement
in Pennix’s case, ruling that “. . . on these facts, I agree with Mr. Pennix’s argument as
presented very artfully by Mr. Pushinsky that imposing the enhancement under Section
3C1.2 would be improper.”
Pennix raises a final issue, arguing that his counsel was ineffective for failing to
object to several exhibits offered by the Government that connected an automobile crash
to Pennix’s attempts to evade police after the bank robbery. As with the previous issues,
this issue was not presented to the District Court. Moreover, our established precedent
teaches that where a claim of ineffectiveness of counsel was not presented to the District
Court first, the claim is not properly preserved for review on direct appeal. United States
v. Thompson, 327 F.3d 268, 271-72 (3d Cir. 2003). It should be made by seeking review
via a writ of habeas corpus.
Accordingly, for the foregoing reasons, we will affirm the sentence of the district
court.
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